Courts attach little value to pets

Written by Kelly Kaczala

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They are groomed, dropped off at day care, fought over in custody disputes, and increasingly listed among the survivors in obituaries. And when they die, their bereaved owners are offered grief counseling.

Pets, in many ways, are considered members of the family. In a 2004 survey, conducted by the American Pet Products Manufacturers Association (APPMA), 74 percent of pet owners considered their pets “like a child or family member.”

Yet the law lags far behind that perception.

In Ohio, as in most states, pets are considered personal property, no more valuable than a piece of furniture. As a result, pet owners find it nearly impossible to find a lawyer to file a lawsuit against a veterinarian for malpractice or negligence since legal fees are far more than possible monetary damages. Emotional damages are non-recoverable because, well, the law denies an emotional bond exists between people and their “property.” Pets, in essence, are as replaceable as your favorite armchair. Indeed, veterinarians, on average, pay only $200 annually in insurance premiums because of the very low risk of lawsuits.

There is little remedy in the wrongful death of a pet.

"When a vet has been found negligent, the damages are limited to the market value of the animal, which for most animals can be even zero," said Kathy Hessler, a professor at Case Western Reserve University who teaches animal law, a rapidly growing field. The course is the only one taught in Ohio.

"Finding a market value and going beyond that legal remedy for special damages is a difficult thing to do," she said. "There's no emotional distress for loss of property. That's an area different states have been looking at changing and a number of people have been pushing."

"A lot of people presume, since the animal is so emotionally valuable to them, that that would translate into economic value, and it doesn't," said David Favre, a professor of law and president of the Animal Legal and Historical Center at Michigan State University.

Sea change

That may soon be changing, according to Carolyn B. Matlack, an attorney and managing editor of Animal Legal News (animallegalreports.net), which offers summaries of litigation and follows current trends in the field of animal law.

"The good news is that people are recognizing this. That's the first step, recognition that our laws have not caught up to the way we feel about our animals. This is now quite widely known and will become even more so," said Matlack.

As Americans own pets in increasing numbers, according to studies, Matlack believes "a sea change" in how the law views pets is about to occur as more people consider pets as family.

The American Veterinary Medical Association (AVMA) is opposed to changing laws regarding pets as more than personal property, according to the April, 2006 issue of DVM News. To do so would increase medical costs to animals.

"Any change in terminology, describing the relationship between animals and owners, including guardians, does not strengthen this relationship, and may harm it," says the OVMA. "Such changes in terminology could adversely affect the ability of society to obtain and deliver animal services, ultimately resulting in animal suffering."

Matlack doesn't buy it.

"If they're charged more as a veterinary community, somewhere in the realm of - God forbid - human malpractice insurance - they believe that cost would be passed on to the public. Therefore, fewer people would be able to bring their animal to the veterinarian, and more animals, and people, will suffer, because of that,” she said. “However, in my opinion, that is completely unrealistic. That's because we are seeing a sea change. It's like trying to stop Mothers Against Drunk Drivers, when they first formed - when they were trying to obtain penalties for drunk drivers maiming or killing their sons and daughters based on literally horse and buggy laws."

Jack Advent, executive director of the Ohio Veterinary Medical Association (OVMA), which represents the interests of veterinarians, does not want the law changed.

"While to many this thought may seem innocent, changing the legal status of animals would have significant adverse consequences for all animals and their owners," he said. "If a veterinarian practices inappropriate veterinary medicine, regulatory bodies are fully empowered to discipline that veterinarian through a variety of means, including suspension or removal of their license."

The OVMA supports the position of the AVMA, he added, which recognizes and supports the legal concept of animals as property.

Yet pressure is mounting on state legislatures to upgrade the value placed on pets, said Favre. One way is to set potential ceilings or caps on the amount of damages that may be awarded to pet owners.

"Everyone talking about this on the legislative side has suggested a potential ceiling of no more than $50,000, or no more than $100,000. It's too common sense to say if something goes terribly wrong, that some level of reimbursement is appropriate," he said. "But you don't have to change the status of animals as property to change the outcome for negligence or malpractice,” he added. “You can pass a law that simply says the jury may award up to $25,000 in compensation for pain and suffering to the owner.”

Sentient property

Matlack suggests a compromise. Pets, she said, could be classified as a higher form of property that has feelings and emotions - called "sentient," or feeling, property.

"It's my hope and belief that once judges, animal lovers, legislators, and lawyers, get a hold of something they can hang their hat on, something that's a positive solution, that this will facilitate the whole process-whether it be in court, or at the state legislative levels," said Matlack, who recently wrote a book, "We've got feelings, too: Presenting the sentient property solution.”.

"I would like to provide a solution, and I've spent years and years researching what that solution might be - and that's sentient property," she said.

What kind of response has she received from the veterinary community?

The AVMA and the pharmaceutical association are against any change in the relationship between animals and their owners, she said, "which I think is unrealistic and not positive."

Veterinarians need to step up to the challenge and acknowledge the human-animal bond exists, she said.

"Veterinarians tell us we have this bond, and they acknowledge it, and frankly, they're making increasing amounts of money off that bond," she said. "If their leadership is saying `deny all forward progress,’ but then want pet owners to pay $1,000 for chemotherapy treatment, it's a clash. Veterinarians need to look at their state legislation, decide on a fair value of the life of an animal. That's one place to start. Then pass that legislation in their state."

Communication

Favre emphasizes the importance of communication between pet owners and veterinarians to find a solution when there's a grievance to avoid lawsuits.

"Most people file lawsuits as a last resort," he said. "They want an acknowledgment by the vet that they were wrong and want an apology - that it wasn't right. The truth helps. Many vets absolutely just freeze up. When it becomes clear that someone is thinking about a lawsuit, they just shut down and they're not going to talk to you, so there's no communication."

Conversely, pet owners may not have valid complaints, he said.

"Just because a pet dies at the vet’s office doesn't mean they did something wrong," he said.

If communication fails, complaints can be filed with state veterinary licensing boards, which oversee the veterinary profession. Vets can be disciplined, and in rare cases, have their licenses revoked.

"Every state has them," said Favre. "Some states treat complaints more seriously than others. At least there would be a public record of a complaint. That often makes pet owners feel better. They've now warned the world about someone who's apparently not doing good things."

Until laws catch up to the public's concept of pets as family, animal law courses are filling up rapidly with students who are preparing for the inevitable, said Hessler.

"It's been an area of growing interest in the bar," she said. "Every year I also have requests from attorneys to take the class. Right now, we haven't got room for them. So, both here in Ohio and across the country, there used to be only a handful of law school courses about 10 years ago. Now, I believe it's up to 50 schools offering, in some form or another, an animal law course.”

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